The US Department of Commerce’s Bureau of Industry and Security (“BIS”) has issued a final rule, effective January 15, 2026, revising the license review policy for exports from the United States of certain commercially available advanced computing semiconductors to end users in China and Macau—moving from a presumption of denial to case‑by‑case review under certain conditions. The case-by-case review policy is only available for exports meeting strict requirements, including various certifications as to sufficient supply in the United States, US third‑party testing, and KYC/remote‑access safeguards. “AI commodities” (the term that is used in the final rule) eligible for the case-by-case licensing policy under the rule include advanced computing hardware such as the Nvidia H200, AMD MI325X, and their functional or lesser equivalents. Note that reexports of the same items from other countries and in-country transfers remain subject to a presumption of denial.
On the same day, President Trump signed a proclamation imposing a 25% duty rate on advanced computing chips, such as the H200 and the MI325X, which are produced outside the United States and pass through the United States before being exported to customers outside the United States. The tariff does not apply to chips being imported to support the US technology supply chain and domestic manufacturing capacity. Thus, the more favorable case-by-case license review policy for exports of advanced computing chips from the United States appears to be tied to those subject first to a 25% tariff upon import into the United States. The final rule and the proclamation in conjunction implement President Trump’s announcement in early December 2025 that he would allow the export of the H200 and similar chips to approved customers in China in exchange for 25% of the revenues being paid to the US Government.
Note: This limited relaxation follows the announcement in May 2025 that BIS would rescind the broader, Biden‑era Framework for Artificial Intelligence Diffusion and worldwide licensing requirements issued in January 2025 (covered here), although formal rescission still has not occurred and those rules remain in the Export Administration Regulations (“EAR”).
Eligible Commodities/Transactions
Before the new rule, license applications to export advanced computing chips from the United States to end users in China or Macau were reviewed under a presumption of denial, as were reexport and in-country transfer license applications. The new rule creates a case‑by‑case path for certain eligible commodities when specific thresholds and conditions are satisfied, again only in the context of export license applications, as follows:
- Exports from the United States to end users in China or Macau;
- Of advanced computing chips with Total Processing Performance (“TPP”) less than 21,000 and ‘total DRAM bandwidth’ less than 6,500 GB/s, such as the Nvidia H200 and AMD MI325X;
- Provided the applicant submits the required certifications and supporting data.
If a license application meets the criteria of more than one licensing policy, the case-by-case policy of this rule and its requirements will apply.
Certification Requirement and Conditions
To qualify for case-by-case review, applications covering eligible AI commodities must include the certifications and supporting data specified in supplement No. 2 to EAR Part 748, paragraph (dd), as follows:
- Performance & US Shipment Disclosure: The items operate below the relevant performance criteria and the number of units of the items that have been shipped within the United States at the time of the license application.
- US Supply & Foundry Capacity Assurance: There is sufficient supply of the product in the United States such that export of the products authorized by the license would not result in any delay in fulfilling any existing or new orders of any of the applicant’s “advanced‑node integrated circuits” from customers in the United States for end use in the United States (taking into account normal lead times); and that global foundry capacity that would otherwise be used to produce similar node or more advanced integrated circuits for end users in the United States will not be diverted to produce the commodities authorized by the license for exports to China.
- China/Macau Shipment Cap: The aggregate TPP of the product to China and Macau will be no more than 50% of the aggregate TPP for product shipped to customers for end use in the United States of that product.
- End‑User/End‑Use Controls Compliance: This certification addresses direct recipients of the items as well as those that will be given remote access to the items: (i) the items are not intended for prohibited end users/uses, as set forth in EAR Part 744, including military or military intelligence end users/end uses, Entity List parties and Specially Designated Nationals and Other Blocked Persons; as set forth in EAR Part 744; and (ii) no such parties will be granted remote access to the items.
- KYC & Remote Access Controls: The ultimate consignee will employ rigorous Know Your Customer (“KYC”) procedures to screen and prevent unauthorized remote access to prohibited end users or end uses, as set forth in EAR Part 744.
- Physical Security: A description of the physical security measures at the ultimate consignee’s facility for the AI commodities.
- IaaS Commitments (if applicable): Where the ultimate consignee or end user provides infrastructure-as-a-service (“IaaS”), the applicant must verify that (i) they remain compliant with the end-use/end-user prohibitions; (ii) model weights trained on the AI commodities will not be transferred to any end user not disclosed on the license or without BIS authorization; and (iii) prohibited end users or end uses will not have direct or indirect remote access to any algorithm trained on the AI commodities.
- Third‑Party Testing: Prior to export from the United States, each shipment must be supported by a certification from a qualified, independent US-headquartered third‑party testing lab, confirming the technical capabilities and functions of the AI commodities described in the license application. This testing may be based on a representative sampling of a batch of AI commodities chosen by the lab.
- Remote End‑User List: The applicant must also provide a list of remote end users located in Belarus, China, Cuba, Iran, Macau, North Korea, Russia or Venezuela, or whose ultimate parent company is headquartered in, Belarus, China, Cuba, Iran, Macau, North Korea, Russia or Venezuela.
Items Remaining Subject to Presumption of Denial
The following transactions remain subject to a licensing policy of presumption of denial:
- Reexports and in‑country transfers of otherwise eligible AI commodities to Macau or any Country Group D:5 destination, including China.
- Exports to entities located outside of Macau or D:5 countries, including China, which are headquartered in, or whose ultimate parent is headquartered in, Macau or any D:5 destination.
What Companies Can Do Now
To prepare for submission of license applications under the new case-by-case licensing policy, exporters should consider taking the following steps:
- Plan for US testing: Engage qualified US labs; schedule pre-export verification; ensure independence and capability to validate TPP, DRAM, interconnect, and co-packaged DRAM metrics.
- Document supply and capacity assurances: Build a record that China/Macau orders will not delay US orders or divert foundry capacity from similar/more advanced products for US end users.
- Tighten KYC and remote access controls: Collect KYC materials; compile IaaS remote user lists for the named jurisdictions; implement controls to prevent unauthorized remote access or model weight/algorithm leakage.
